Tuesday, January 20, 2015
Thinking More Deeply About Treating Nonlawyers Who Offer Medicaid and Estate Planning as Engaging in UPL
Earlier this week, we reported on the Florida Supreme Court's recent Advisory Opinion regarding activities by nonlawyers in "Medicaid Planning" that will be treated as Unlicensed Practice of Law (UPL).
That piece triggered several discussions with colleagues, and thus we have more information to share.
Stanford Law Professor Deborah Rhode, working with Lucy Buford Ricca, the Executive Director of Stanford's Center on the Legal Profession, has a relatively new article in Fordham Law Review's annual colloquium issue that deepens Rhodes' long-standing concerns about the potential impact of treating certain "nonlawyer" conduct as sanctionable under state UPL rules. In "Protecting the Professor or the Public? Rethinking Unauthorized-Practice Enforcement," Professor Rhode begins with the history behind her earliest examination of the utility of "do it yourself kits" in areas of underserved legal needs, such as divorce. In her most recent Fordham piece, she also builds upon her 1981 survey of UPL enforcement procedures across the 50 states, by making a close examination of over 100 reported UPL decisions issued in the last decade. Rhode and Ricca conclude that UPL enforcement needs to be more consumer-oriented and less driven by narrow interests of lawyers in protection of specialized practice. They advocate that a "more consumer-oriented approach would also vest enforcement authority in a more disinterested body than the organized bar." Their article is a must read for any Bar group considering UPL issues, including those arising in the elder law or estate planning context.
Along that same line, the American Bar Association is hosting its second "UPL School" in Chicago on April 17-18. The purpose is to provide "a central forum for volunteer members of state and local bar UPL committees and commissions, and those charged with the prevention and prosecution of UPL violations to discuss current UPL challenges." (The first such "ABA UPL School" was held in 2013, focusing on several areas including immigration, "notario" fraud, and mortgage relief or loan modification vendors.)
Those were the words of Ron Costen in speaking to friends, co-workers, legislators and policy-makers who have long been inspired by his passion to protect the elderly and who had gathered to honor Ron.
Temple Professor Ronald Costen, with multiple degrees in law and social work, has been working on behalf of vulnerable adults, including older persons, for more than thirty years. He is preparing for a "realignment" -- not a retirement -- as he leaves his full time job as founder and Director of Temple University's Institute on Protective Services in Harrisburg, Pennsylvania, where he advised Area Agencies on Aging, county task forces, coroners, prosecutors, social work students and the Department of Aging on best practices when seeking protection for adults faced with neglect or abuse.
The audience, including Pennsylvania Department of Aging Secretary Brian Duke (shown above, right, with Dr. Costen, left), celebrated Dr. Costen's career last week with warm and funny memories, helping him embark on a new combination of consulting work and studies at the Lutheran Theological Seminary of Gettysburg. The new director of the Institute is one of Ron's former social work students, Christopher Dubble, MSW.
Best wishes, Ron!
Monday, January 19, 2015
If you were retiring, would you want marketers of insurance products and funeral services -- or similar products -- obtaining your name and address from your former employer? Pennsylvania's Right-to-Know Law could be permitting just such access to information on a large number of state retirees.
In a decision issued January 9, 2015, the Commonwealth Court of Pennsylvania, an intermediate court, ruled the Pennsylvania State Retirement System (SERS) failed to satisfy its burden to prove "a substantial and demonstrable risk" arising from a request for 15 years' worth of records containing the "names and addresses of all retirees" from the state. Therefore, the names and contact information of more than 1,000 retirees, or if deceased, the information on their beneficiaries, must be disclosed by SERS. And if SERS "failed" in carrying the burden of proving why this should not happen, as the opinion demonstrates, it was not for lack of trying.
The Court recognized an exception from disclosure for retired judges and law enforcement officers on the grounds of specific "personal safety and security" language tied to those positions, contained in Pennsylvania's Right-to-Know Law.
Sunday, January 18, 2015
Following extensive hearings and related proceedings, including revision of an earlier proposed advisory opinion by the Florida Bar's Standing Committee, the Florida Supreme Court issued a per curiam opinion on January 15, 2015, addressing certain Medicaid planning activities, concluding that when performed by nonlawyers, they constitute the "unlicensed practice of law" (UPL), thereby leading to potential sanctions.
The ruling focuses on actions by nonlawyers who assist with one or more of the following activities leading up to an application for Medicaid: (1) drafting of personal service contracts, (2) preparation and execution of Qualified Income Trusts; or (3) rendering legal advice on implementation of Florida law to obtain Medicaid benefits. The Court expressly distinguished the "preparation of the application for Medicaid benefits" as being outside of its opinion, pointing to federal law as authorizing nonlawyer assistance in the application process.
The Elder Law Section of the Florida Bar was the petitioner seeking the advisory ruling.
In the detailed conclusion, the "harm and potential harm" from "unregulated" nonlawyers selling trust packages was outlined:
Thursday, January 15, 2015
The White House Conference on Aging announced earlier in the week upcoming regional WHOCA meetings-coming soon, to a city near (sort of ) you. The first WHCOA regional meeting will be in Tampa, Florida on February 19. The other locations and dates are:
- March 31-Phoenix
- April 9- Seattle
- April 27-Cleveland
- May 28-Boston
Wednesday, January 14, 2015
Directly from the White House:
The first White House Conference on Aging (WHCoA) was held in 1961, with subsequent conferences in 1971, 1981, 1995, and 2005. These conferences have been viewed as catalysts for development of aging policy over the past 50 years. The conferences generated ideas and momentum prompting the establishment of and/or key improvements in many of the programs that represent America’s commitment to older Americans including: Medicare, Medicaid, Social Security, and the Older Americans Act.
The 2015 White House Conference on Aging
2015 marks the 50th anniversary of Medicare, Medicaid, and the Older Americans Act, as well as the 80th anniversary of Social Security. The 2015 White House Conference on Aging is an opportunity to recognize the importance of these key programs as well as to look ahead to the issues that will help shape the landscape for older Americans for the next decade.
In the past, conference processes were determined by statute with the form and structure directed by Congress through legislation authorizing the Older Americans Act. To date, Congress has not reauthorized the Older Americans Act, and the pending bill does not include a statutory requirement or framework for the 2015 conference.
However, the White House is committed to hosting a White House Conference on Aging in 2015 and intends to seek broad public engagement and work closely with stakeholders in developing the conference. We also plan to use web tools and social media to encourage as many older Americans as possible to participate. We are engaging with stakeholders and members of the public about the issues and ideas most important to older individuals, their caregivers, and families. We also encourage people to submit their ideas directly through the Get Involved section on this website.
The New York Times ran an article about the "trend" among states to adopt "right to try" drugs, which allow critically ill patients to try drugs that have not yet been approved by the FDA. Patients Seek 'Right to Try" New Drugs reviews the issues presented by "right to try" laws. These "right to try" laws have been adopted in several states, according to the article, including Arizona, Colorado, Louisiana, Missouri and Michigan. What is truly the goal of "right to try" laws? Get unapproved drugs into the hands of those who need them, or something more?
According to the article, the laws are really about autonomy and control over one's final days.
The laws do not seem to have helped anyone obtain experimental medicine, as the drug companies are not interested in supplying unapproved medications outside the supervision of the F.D.A. But that seems almost beside the point to the Goldwater Institute, the libertarian group behind legislative efforts to pass Right to Try laws. “The goal is for terminally ill patients to have choice when it comes to end-stage disease,” said Craig Handzlik, state policy coordinator for the Goldwater Institute, based in Arizona. “Right to Try is something that will help terminally ill people all over the country.”
According to the article, 10 states are likely to take up "right to try" laws in the 2015 legislative session, with pre-filed bills in a few states so far. The article notes there are critics of such laws. The federal courts have already weighed in on "right to try" laws, with the case, Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach , 495 F.3d 695 (D.C. Cir. 2007) (cert. denied, 552 U.S. 1159 (2008)). The "right to try laws" do have some limits, which the article describes, using Colorado as an example
The Colorado law, which is similar to ones in other states, permits terminally ill patients who have exhausted their treatment options — including clinical trials — to obtain therapies that have passed at least the first of three F.D.A. investigation phases. The law does not require companies to provide the treatment, nor does it mandate that insurance companies cover it; the law also allows insurance companies to deny coverage to patients while they use drugs under investigation.
For those patients who are terminally ill, there is help under the FDA rules for them to get access to unapproved drugs. "[T]he F.D.A. created a process for granting unapproved therapies to people with exceptional need. Called the “expanded access program” or “compassionate use,” the program ... is [the] way for terminally ill people to request an unapproved therapy after they are rejected from clinical trials." Criticism of the length of the FDA approval process isn't new, and even the "expanded access program" has critics, with an illustration provided in the article.
These "right to try laws" intend to speed up the process by eliminating the FDA involvement. "Once a physician and a patient determine that treatment is the right choice — and that other options have been exhausted — the pair approach the drug company for permission."
So "right to try" laws appear to be one more effort to preserve autonomy and give terminally-ill patients more options for their care; another tool in the tool chest that includes advance directives, POLST, PAD, and DNRs, to name a few.
A 90-year-old resident apparently wanted "out" of her personal care home in Pennsylvania -- but being kicked out probably wasn't the outcome her family wanted to see for their restless matriarch. The personal care home issued a discharge notice on safety grounds, due to her "continued exit-seeking from the building."
On January 9, 2015, the Commonwealth Court of Pennsylvania, an intermediate court, ruled that a core right recognized in state and federal law for residents of "long-term care nursing facilities" -- the right to seek third-party review when the resident or family disagree with a facility's involuntary discharge or transfer decision -- does not apply to "personal care homes" under the state licensing and regulatory system. See Bouman v. Department of Public Welfare, Case No. 1262 C.D. 2014, decided November 14, 2014.
Perhaps a new facility was the best decision, but at age 90, the woman's options for settling into a new place may be very limited. The short opinion does not reveal whether other approaches, including behavioral "distraction" techniques that often are effective for those with dementia, were explored. And without an appeal right, families may have no effective way of advocating for those approaches.
At the AALS Annual Meeting earlier this month, a colleague mentioned she had stopped receiving automatic emails advising her of new Elder Law Prof Blog entries. I investigated -- and it seems that "subscriptions" terminate automatically from time to time and need to be renewed.
It's easy to do. There's a "subscribe" drop-down box at the top of the Elder Law Prof Blog page. Just click on that and enter your email address. You'll then get an opportunity to "confirm" your free subscription. You can also cancel anytime (and that takes immediate effect). The "subscription" generates an email no more than once per 24-hour cycle, giving you summaries and links to the latest postings. No new posts? No email reminders to clog up your in-box.
Tuesday, January 13, 2015
"The Coming Congressional War Over Social Security Disability," by Forbes' Howard Gleckman, is recommend reading from Elder Law Attorney Morris Klein. Here's a taste:
"A technical rule change engineered by House Republicans on the first day of the new Congress may signal the beginning of a major battle over the future of the Social Security Disability program—and, more broadly, other federal programs for people with disabilities.
The immediate issue is the fate of the SSDI trust fund, which is expected to become exhausted in 2016. If new funding is not found, SSDI benefits will be cut by about 20 percent for 9 million workers, 2 million of their children, and about 160,000 spouses."
Seems like just yesterday we were complaining about Congressional inaction and gridlock. Could it be that those were the "good ol' days?"
Monday, January 12, 2015
We have blogged on several occasions about the myriad issues regarding caregiving in the U.S. Kaiser Health News ran an interesting story last week about the training (or lack thereof) of caregivers. Lots Of Responsibility For In-Home Care Providers — But No Training Required focuses on the topic of the growing need for in-home caregivers and training them
The need for in-home caregivers is rising as the elderly and disabled population grows. The demand for personal aides – most of whom work in the home — is expected to increase by 37% over the next decade, requiring about 1.3 million new positions, according to research published last year by the New-York based Paraprofessional Healthcare Institute, an advocacy group that also provides training.
Training requirements are left to the states and there is significant variance, according to the story, which used California as an example. California's program "In-Home Supportive Services Program" or IHSS, according to the article is the largest "publicly funded home care program" in the country and has a significant percentage of caregivers related to the elders needing care. Although the caregivers are employed to provide chores around the home and personal care, because so many of the clients are at least 80 or older and have dementia or multiple health problems, the caregivers find themselves in expanded roles where they perform some medical care. When the caregivers are in that situation, they are supposed to be trained and ok'd by a health care professional, but the state doesn't support the training or compensate the caregivers for going through it.
But, as the article notes, the purpose of the California program was to allow the clients to direct their care, which as their health declines, may not remain possible. The state does offer online training for those caregivers who voluntarily seek it. The article goes on to discuss the complex issues in requiring caregiver training
Relatives, who make up nearly three-quarters of paid IHSS caregivers, often say they know what is best for their loved ones. And clients are inclined to trust family members and say they can instruct them on what they need.
Different states are trying variations on training; for example in 2012 Washington State started requiring 75 hours of training for in-home caregivers and under the ACA, California, along with a few other states, has received grants totaling nearly $15 million "to recruit and train qualified caregivers for the elderly and disabled populations."
The article also features an audio version and includes the stories of several caregivers.
We have written often recently (see here and here) about problems with Powers of Attorney (POAs), and a pending case in Minnesota appears at first to be another sad tale of an agent's alleged self-dealing. The Minnesota Court of Appeals set up the fact pattern as follows:
"The attorney is asked to draft a power of attorney for his elderly client. The document is drafted by a secretary. The lawyer never meets the client. Neither the lawyer nor the secretary ever discusses the ramifications of signing the document with the client. The document allows the attorney-in-fact to transfer all of the client's assets to himself. Days after the [elderly uncle] signs the document, that is precisely what happens."
The nephew used the POA to drain the uncle's accounts of more than $227,000.
Was the nephew liable for conversion? By the time that question was answered by the courts in the affirmative, the nephew was in bankruptcy -- and the money was apparently gone.
The uncle's estate looked for deeper pockets, and focused on the law firm that provided the broadly worded POA "form." The Minnesota Court of Appeal's split decision -- focusing on whether summary judgment for the defendant law firm was proper -- outlines several points that should be considered by any law firm that has drafted a POA, including whether such "forms" should ever be provided to individuals without accompanying legal advice.
Sunday, January 11, 2015
The beginning of the spring semester doesn't mean just the beginning of classes. It's also the beginning of the spring CLE cycle. Here are just a few upcoming educational opportunities of interest in elder law world.
- January 23-Stetson Law presents a one hour webinar on the ABLE Accounts: Introduction to ABLE Accounts: What Will We Be ABLE To Do With the New Law?
- January 29-31 NAELA's Summit
- February 6- U. Texas Special Needs Trust Conference
- February 27-Incorporating Veterans Law in your Existing Elder Law Practice
- April 24-Stetson's Annual Fundamentals of Special Needs Trust Administration Webinar
Friday, January 9, 2015
Criminal behavior in older adults, including theft, traffic violations, sexual advances, trespassing, and public urination, may be a sign of dementia, researchers say. There is a subgroup of people, especially older adults who are first-time offenders, who may have a degenerative brain disease underlying their criminal behavior, said Dr. Georges Naasan of the Memory and Aging Center and Department of Neurology at the University of California, San Francisco. He and his coauthors reviewed the medical records of 2,397 patients diagnosed with Alzheimer’s disease or other types of dementia between 1999 and 2012. They scanned patient notes for entries about criminal behavior using keywords like ‘arrest,’ ‘DUI,’ ‘shoplift’ and ‘violence’ and uncovered 204 patients, or 8.5 percent, who qualified. Their behaviors were more often an early sign of frontotemporal dementia (bvFTD) or primary progressive aphasia (PPA), a type of language-deteriorating dementia, than of Alzheimer’s disease.
Read more at Reuters.
Michigan Governor Rick Snyder signed Michigan Senate Bill 886 and related bills (SB 887, 888 and 889) into law on December 30, 2014. The new law is described as "an ongoing effort to continue to support consumer choice and protection while encouraging continued investments into vital care facilities" in the state of Michigan, focusing on continuing care retirement (CCRCs) and life care communities.
The law, titled the Continuing Care Community Disclosure Act, would appear to replace prior law, and thus it will be important to sit down with the new provisions and examine them carefully, especially given the announced reasons for passage. I'm guessing there might be some trade-offs here, with both consumers and providers having interests at stake. According to press releases, some of the "major" provisions of the new law include:
- A limit on amortization of the entrance fee to 1.5 percent for each month of occupancy
- A requirement for any continuing care community to register with the Department of Licensing and Regulatory Affairs (LARA)
- Setting a $250 registration fee and a $100 renewal fee
- Organizations must report if any executive officers or director has been convicted of certain felonies
- A feasibility study with a business plan must be included in each application
- Exemptions from promulgated rules governing different types of facilities could be granted if the rules interfere delivery of care or with moving residents between different facilities
- Regulations on the fees facilities may charge and how refunds are provided to potential and former residents
- A continuing care community could petition for a guardian if a resident became incapacitated and unable to handle his or her personal or financial affairs
The legislation reportedly had the support of LeadingAge in Michigan. I'm curious about the background on this new legislation -- perhaps some of our readers know the history and reasons for new laws here?
The American Bar Association's Commission on Domestic & Sexual Violence is teaming with the National Clearinghouse on Abuse in Later Life (NCALL) to host a 5-part FREE webinar series on "Abuse in Later Life." The target audience includes "civil attorneys, legal advocates and otherw who wish to gain a deeper understanding" of the topics.
The series takes place on Thursdays (mark your calendars!), starting on January 22, and includes the following modules:
- Module One: Abuse in Later Life: An Overview
Thursday, January 22, 2015, 2:00-3:00 pm E.S.T.
- Module Two: Forming the Relationship with Your Client: Client communication, interview skills, and confidentiality/mandatory reporting concerns
Thursday, February 5, 2015, 2:00-3:00 pm E.S.T.
- Module Three: Client Goal-Setting and Non-Litigation Responses: Client collaboration, developing client priorities and non-litigation responses to ALL
Thursday, February 19, 2015, 2:00-3:00 pm E.S.T.
- Module Four: Legal Resolutions and Remedies in ALL cases: Protective orders, Guardianships, Power of Attorney agreements, end of life health care decision-making and working with the criminal justice system
Thursday, March 5, 2015, 2:00-3:00 pm E.S.T.
- Module Five: Bringing the Case – Trial Skills: Protection of evidence and assets, motion practice, witness testimony methods and supports, direct and cross-examination and application of the Crawford decision in ALL cases
Thursday, March 19, 2015, 2:00-3:00 pm E.S.T.
For more information, including registration, go here.
Thursday, January 8, 2015
The Denver Post ran an article on Sunday January 4, 2015 about early detection of Alzheimer's. Alzheimer's disease researchers pursue early detection reports about the work researchers have done that has led the, according to one scientist to "the brink of understanding." Researchers at the U. of Colorado in Boulder have been working diligently, with a new drug trial and a proposal for "a federally funded research center..." The article quotes an expert from the Alzheimer's Association about how early detection is so important:
"There's broad recognition now that the brain changes that lead to Alzheimer's disease occur long before there are any symptoms," [Dr. Keith] Fargo said. "By the time changes in cognitive abilities are evident, you have lost a lot of brain cells, and much of what is going to happen with Alzheimer's disease has already happened."
Dr. Fargo goes on to note that it may take 10-20 years before it's actually found and by then, it's too late to undo the damage. Thus the race to find a way to diagnose Alzheimer's before the symptoms show up. The article discusses the work researchers are doing to figure out ways to detect the disease early on. These range from using PET scans to blood tests to "genetic profiling." The trial starting at U. of Colorado involves the "protein released in the brain of people with rheumatoid arthritis. They don't develop the disease." Another interesting area of research involves the sense of smell: those individuals who aren't good at "identifying smells are at high risk of Alzheimer's... [since the] cranial nerve that affects the olfactory sense is one of the first areas involved in brain degeneration."
This is one race we want the researchers to win-soon.
Via The Independent:
Emma Healey’s debut book about an octogenarian sleuth with dementia, which sparked a frenzied bidding war among publishers, has been named best first novel at the Costa Book Awards. Elizabeth is Missing, which was inspired by the author’s grandmothers, will now compete to be named Costa Book of the Year later this month with the four other category winners. Ms Healey, who wrote the book over five years including during lunch breaks while she worked at a London art gallery, said: “I am amazed; I can’t quite believe it.” The book has been compared to Mark Haddon’s The Curious Incident of the Dog in the Night-Time, and has been memorably dubbed “Gone Gran” in reference to the thriller Gone Girl. “I love the reference,” Ms Healey said. “Though I have to keep pointing out there are no car chases or gory murders, this detective is in her 80s.”
Source/more: The Independent
Check out this new report on SSA's Rep Payee system. The Administrative Conference of the United States released the report, SSA Representative Payee: Survey of State Guardianship Laws and Court Practices. ("The Administrative Conference of the United States (ACUS) is an independent federal agency dedicated to improving federal administrative processes through consensus-driven applied research, and provision of non-partisan expert advice and recommendations to federal agencies." (report at page 1)).
This report was done pursuant to a request in 2014 by SSA to ACUS to learn more about various state guardianship laws and the court practices. ACUS did this by:
(1) carrying out legal research on state laws nationwide governing guardian selection, monitoring, and sanctions; (2) conducting a survey that captures information on state court practices and procedures relating to guardianships, and analyzing the results of the survey; ... and (3) conducting interviews with up to nine state organizations or governmental entities with expertise in, or that provides services related to, adult protective services or foster care in order to evaluate their respective practices related to guardianship and benefits monitoring.
The report includes key findings, trends and "common themes and observations." The summary of findings runs for 4 pages and addresses a variety of topics, including guardian selection, sanctions and removals, court monitoring, outreach and interaction, and caseloads.
The key findings section recognizes the variations amongst the states, but still offers useful information
The study presented challenges because a number of identified problems are local and unique to a particular court within a particular state, or with a specific SSA office. Problems experienced by courts in major cities may be quite different than problems experienced in small or rural courts... The strategy behind this project was to cast a broad net and seek a large respondent pool to collect a dataset that would provide a rich description of the issues... The fact that there are over 850 court responses and over 140 guardian responses means that we can glean a lot of useful information in terms of the nature of the problems, even if some of those problems are localized. The results of this study should be a good starting point for SSA; and the agency should be able to assess and act on any serious problems, albeit localized ones.
The report identifies 5 common areas of concern, including inconsistent electronic information and inconsistency in dealing with various SSA offices, variations in e-filing procedures, and the lack of a nationwide database of guardians or guardianship cases.
We recently heard from Emily Crim, a Public Interest Fellow working in Boston with the "Elder Abuse Prevention Project" under the auspices of Greater Boston Legal Services. The project's important mission, now more than a year in development, is to "offer legal advice and representation of victims, provide training to care providers, community members, and seniors, as well as to advocate for systemic reform and build local networks that can prevent and intervene in cases of abuse." As part of this Project, they have recently launched a great new "Project Blog" to help get the word out.
Here's a link to their most recent post on "LGBT Elder Abuse: An Invisible Problem within an Invisible Community." Here's a link to the Project website too. Certainly the topics addressed here are relevant beyond the Greater Boston area!
Thanks, Emily, for reading our Elder Law Prof Blog and for sharing your latest news!